State Jurisdiction

In one line

Jurisdiction is a State's authority to make law, to apply it and to enforce it, and international law says which connections to a person or an event are close enough to justify each.

In the wording a student can write in an exam: jurisdiction is the power of a State to prescribe, adjudicate and enforce its law. Five bases are recognised: the territorial principle, including its subjective and objective forms; the nationality or active personality principle; the protective principle; the passive personality principle; and the universality principle. The territorial principle is primary, and enforcement jurisdiction is strictly territorial.

Three kinds of jurisdiction

Separating these is the first move in any jurisdiction answer.

Prescriptive jurisdiction, or legislative jurisdiction: the power to make law applicable to persons, property or conduct. Whether India may make a law about what an Indian does in Dubai is a question of prescriptive jurisdiction.

Adjudicative jurisdiction: the power of a State's courts to try a case.

Enforcement jurisdiction: the power to compel compliance, by arrest, seizure, search or execution.

The crucial difference. Prescriptive and adjudicative jurisdiction may extend beyond the territory. Enforcement jurisdiction is strictly territorial. India may legislate for its nationals abroad; it may not send police to arrest one of them in Dubai. Doing so is a violation of the other State's sovereignty, and the Corfu Channel case, worked in [Innocent Passage, and Straits], holds that respect for territorial sovereignty is an essential foundation of international relations and that self-help of that kind cannot be accepted.

The starting point: the Lotus presumption

Facts. S.S. Lotus (France v. Turkey), PCIJ Series A, No. 10, judgment of 7 September 1927. The French mail steamer Lotus collided on the high seas off Sigri with a Turkish vessel, which sank with loss of life. When the Lotus reached Constantinople the Turkish authorities held an inquiry and prosecuted Lieutenant Demons, the French officer of the watch, for manslaughter, along with the Turkish captain. The Turkish court affirmed its jurisdiction. France protested that Turkey had no title to prosecute a French national for an act done on board a French ship on the high seas, and by special agreement the two States asked the Court whether Turkey had acted contrary to the principles of international law.

Held. By the President's casting vote, the Court being composed of twelve judges equally divided, Turkey had not acted contrary to international law. The Court framed the question as one of principle: must a State find a title permitting it to exercise jurisdiction, or is jurisdiction admissible unless it conflicts with international law? It adopted the second view. International law is based on the free will of independent States; it prohibits a State from exercising its sovereign powers in the territory of another except by virtue of a permissive rule, but it does not prohibit municipal courts from taking cognisance of acts which took place abroad, subject to a few prohibitive rules of an exceptional nature, the general principle being that every State is free to adopt the principles it regards as best. It would be contrary to general international law to require a State to find a permissive rule before claiming jurisdiction.